HL 19 – A Nation of Laws Not of Judges or the People Who Appointed Them

The press coverage of various legal challenges to President Trump’s immigration and alien entry restrictions (“it’s not a tumor”) has increasingly focused on the judges who are adjudicating these cases in federal district courts and at the appellate level. It’s a free country with an independent and free press – at least as of today – but this press focus on the individual judges and their sponsors is unwise, especially at this precarious moment.Typical of this press approach were the many profiles of the three female district court judges who initially issued temporary orders restraining and suspending portions of Trump’s ban in the chaotic 24 hours after the administration imposed it. Those profiles, along with many written about the momentary and quickly fired acting Attorney General Sally Yates, painted a picture of four brave women standing up to and thwarting the brutal, ignorant and prejudiced male President and his inner circle of badly behaving boys.

As the legal challenges proliferated, including the main event involving the state attorneys general of Washington and Minnesota, the focus on the judges intensified, especially on United States District Judge James Robart, ubiquitously identified as a “Republican appointed by President George W. Bush.” As if that was part of his name and the most important fact about him. Implicitly the press coverage is asserting “see, even this guy who’s a Republican and a conservative – because who else would W appoint – even he thinks Trump stinks.”

The February 6 New York Times’ summary of the legal action continued and stepped up this unfortunate convention. In its report titled “Where Trump’s Ban Stands” Adam Liptak prominently reminds us who appointed Judge Robart, goes on to report the order issued by the United States Court of Appeals for the Ninth Circuit and in the same sentence as their names (William C. Canby, Jr. and Michelle T. Friedland) tells us that Junior was appointed by Jimmy Carter and Michelle by Barack Obama, though maybe she’s a conservative and/or a Republican and he just liked her first name. The Times also reports that the third Ninth Circuit motion judge, who might be active on the Trump administration’s emergency motion to stay Judge Robart’s temporary order, is Richard Clifton “appointed by George W. Bush.”

The Times is telling us, that is what we need to know – nothing about how those judges have ruled in immigration cases or those involving claims of invidious racial or national origin discrimination or matters involving the broad assertion of executive authority. Nope what the reader needs to know is who appointed them.

Continuing this approach, Bob Ferguson, the Washington State Attorney General was interviewed on the PBS News Hour about the challenge he instituted to the entry ban and three times pointed out that Bush 43 appointed Judge Robart.

We’ve been taught that the United States is “a nation of laws not of men” nor of women in this and many instances as we go forward. That’s a good thing that not only is undercut but becomes less true if there is a widespread perception that it’s not really about the constitution and statutes but all about the women and men who apply or bend their interpretations and applications of the law according to their tastes and those of the executives who appointed them.

The best judges and most judges at their finest moments don’t do that. Judge Robart may have exemplified that in his recent ruling. Chief Justice Roberts certainly did in twice casting the crucial votes to uphold Obama Care, despite his apparent disdain for the law, his party affiliation and that of the president who appointed him. Let’s hope this press emphasis on “who’s your daddy” recedes and is replaced by more emphasis and analysis of the law.

About Lloyd

Lloyd is a litigator and author whose work in antitrust and civil liberties law and poor people’s advocacy in and opposed to government involves many important, controversial and heavily reported legal, political and business trends in America from the late 1960s to the present.